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the court, which, at the suggestion of the Even if the court were disposed to visbar, adopted the rule, not for the expedi- it upon the defendant punishment for the tion of the public business, or the con- act of some one other than herself, the venience of the court itself, but to make fractured rule does not authorize the more pleasant the performance of duty drastic penalty proposed by counsel for by the officers of the court. Whenever the plaintiff. To strike off the appeal invoked, therefore, the rule ought to be would work a substantial denial of jusenforced: Laughlin v. Prigg, 3 Dist. R., tice to the defendant who may be pos418 (1894), Waddell, P. J. (15th Dis- sessed of a perfect defence to the claim
in action. The defendant should not be Conceding, however, that security was so stripped of her day in court unless the entered here in plain contravention of a contemplated deprivation finds full sancwise and venerable rule of court deserv- lion in the rule of court invoked for that ing obedience, it does not follow, neces- specific purpose. sarily, that the motion to strike off the And now, this twenty-eighth day of appeal must be allowed.
March, 1924, the motion to strike off the In the first place, the inhibition, which appeal from the judgment of the justice is directed toward prothonotaries, clerks of the peace is overruled and the sole of court and officers concerned in the reason in support thereof is dismissed. execution of process, as well as attorney's, includes only officers of the court. No C. P. of
Lackawanna Co. one other than an officer of the court can violate the rule.
Adoption of Evelyn Marion Waters It is not contended that the defendant broke the rule. Since she is not an attorney, it is beyond possibility that she
Adoption--Living parents-- Protestcould have violated it. It may be true Jct of May 28, 1915, P. L. 580. that the member of the bar who became
Where the parents are living, an affirmasurety for the payment of future costs live decree for the adoption of their child was, at the time of so doing, counsel for by another is conditioned upon their conthe defendant, but, in this connection, it sent,
save only where the parental right
must, on due proof, be deemed to have been must be borne in mind that it was not as forfeited for drunkenness, profligacy, etc., or the legal representative of the latter that neglect to provide for the child. the former signed the appeal bond. On, Petition for adoption. Refused. the contrary, he executed it in his own individual capacity. For himself, and
George Vlorrow, for petition. not as her agent, he gave the obligation.
W'. B. Landis, contra. To allow the motion is to deprive the defendant of a right granted her by the Newcomb, J., March 21, 1926.--The legislature. The judicial arm of the state circumstances are somewhat out of the government ought not to deprive a citi- ordinary. zen of a boon given by the legislative The petitioner stands in the relation hand unless that citizen has done some- of a quasi stepfather to the girl, Evelyn, thing to warrant the forfeiture of the sought to be adopted. Her parents, Mr. privilege conferred. Here, the defend- and Mrs. Waters, had been divorced and ant, has done nothing at all, much less I she had remained with the mother. anything wrongful. To take the judicial Eventually the mother married Mr. Evaction sought, therefore, would amount ans, the petitioner, and since then Evelyn to a direct punishment by the court of an has lived with him as a member of his innocent client for the act of an officer family. The avowed reason for this apof the court. To do this would be flag- plication is the child's desire to bear the rantly unjust and, hence, is unthinkable. same name by which the mother is now
In the second place, the rule is signifi- known. cantly silent as to ny manner in which On the supposition that she will conthe appeal can be affected by an infrac- tinue to have her home with the mother, tion on the part of an officer of the court. 'such reason would in itself be all right
enough, though its bearing on the merits 0. C. of might be doubtful.
Bucher's Estate The ultimate question in such case is merely that of her permanent welfare.
No doubt the petitioner and his home Tills--“Issue" does not include an are free from objection, and therefore,
ad: pied person. on the score of her welfare, there need
"Issue," when used in a will, prima facie, be no misgivings:
means heirs of the body. But the trouble is that the jurisdiction
An adopted daughter of a son of a testator
is not entitled to participate in a distribution is strictly statutory and the conditions made under the following clause of the tesunder which it can be exercised some- equally divided between all my grandchildren
tator's will: "the proceeds thereof (shall be] what limited.
and the issue of any deceased grandchild
the issue of such grandchild to take his Thus, where the parents are living, an
parent's share by representation." affirmative decree is conditioned upon Exceptions to the report of the audittheir consent, save only where the par- or appointed by the Orphans' Court of ental right must, on due proof, be York County, Pa., to distribute the baldeemed to have been forfeited for ance on the account of Emma Jane llitdrunkenness, protlgacy, etc., or neglect Bucher, deceased.
man, trustee under the will of Jacob to provide for the childl: Act May 28,
In adopted daughter of a son of the 1915, P. L. 580.
testator presented a claim for participaSuch proof is lacking here. The fath- tion in the distribution of a fund beer, who contests the proceeding, is a
queathed to the “grandchildren” of the
tentator. The auditor rejected her claim, sober man. His moral character has not and cited in support of his ruling Burbeen questioned. For years he has been nett's Est., 219 Pa. 001; Commonwealth in the service of one employer. That he v. Powell
, 16 11. N. C. 297; Goldstein v. has at all times cherished a father's af- Hummell, 236 Pa. 300); Boyd's Est., 270 fection for this little girl is not disputed. Pa. 507; Buckley v. Fraiser (Mass.), 27
X. E. 708; Gammons v. Gammons That he has been quite ready to provide (Mass.), 99 X. E. 07. Exceptions filed a home for her is asserted by him and by the claimant were dismissed. not contradicted. Indeed it is freely admitted by Mrs. Evans that she not only
Jolin it. I wober, for exceptions. never asked him for any contribution to Jacob F. Il'eaver, contra. the child's support, but that any attempt
Ross, J., March 17th, 1927.-It apon his part to so contribute would have been futile, and any offer thereof would idenied and undisputed by the except
pears by the facts found by the auditor, have been spurned.
ant, that the fund which the auditor was Without prolonging the discussion, it appointed to distribute amongst those must suffice to say that in such state of who are legally entitled thereto is a fund : facts the father's protest can not be dis- Bucher, who died testate. His will was
which was part of the estate of Jacob regarded. It may be the child would clated September 17, 1888, and a codicil have a standing to apply for leave to thereto was dated the same date as the change her name; but that is a question will. Both were probated after his death about which no opinion can now be ex- in the register's office, this county, and pressed.
letters testamentary were granted to the
executors named in the will. The motion is denied and the petition The second item of the will reads as dismissed.
follows: "I give and bequeath, after the
death of my said wife, unto my daughter his will, it must be presumed that he inAmanda, now married to Cornelius tended it to take effect as if executed imWelker, the interest and dividends on mediately before his death. There is sixty shares of the capital stock of the nothing in the will which indicates a conYork Water Company; for and during trary intent: Gummy's Estate, No. 1, 234 her life, and after the death of my said Pa. 139. daughter the said sixty shares of stock “ 'Issue' in a will, prima facie, means shall be sold and the proceeds thereof heirs of the body”: Robins v. Quinliven, equally divided between all my grand- 79 Pa. 333. children (
) and the issue of The testator could not possibly have any deceased grandchild, who shall be known that his son would adopt a child living at the death of said Amanda long after his will was executed. Welker, the issue of such deceased It has been held by Judge Smith, of grandchild to take his parent's share by Lancaster County, in Bealor's Estate, 23 representation."
D. R. 1117, that "a bequest of a remainThe decedent's wife died. The said der to 'lawful issue' will not be held to Amanda Welker died in February, 1923, include a child adopted after the death and the said sixty shares of the stock of of the testator”; and by Judge Hughes, the York Water Company were sold by of Washington County, in Thomas' Esthe surviving executrix, as directed in tate, 2 D. & C. 89, that “The Act of June the will, who filed her account of said 7, 1917, P. I. 429, Sec. 16, does not give trust, and the balance on that account is to the children and descendants of the fund for distribution.
adopted children the right to inherit Among the decedent's children who from their parent's natural ascendants survived him at the time of his death, in and collateral relatives.” 1888, was a son named Jacob Franklin As has been shown by decisions quoted Bucher. That son, on the 5th day of by the learned auditor in his report, Auguts, 1895, by proceedings in the "The right of inheritance is purely statCourt of Common Pleas of York Coun- utory and he who claims a share in the ty, Pennsylvania, adopted as his child a inheritance must point to the law which certain girl named “Mirl Gross, now transmits it to him”: Goldstein v. HamMirl Gross Bucher."
mill, 236 Pa. 300; Boyd's Estate, 270 Pa. The said Jacob Franklin Bucher, the 504, 507. said adopting father, being dead, the said The auditor has pointed out that the Mirl Gross Bucher claims that she is en- cases upon which the counsel for Mirl titled to a share of the fund for distri- Gross Bucher rests the exceptions are bution as a grandchild of said Jacob not applicable to the conditions of the Bucher. Because the auditor refused to present case. recognize her as one who was legally en- And now, March 17th, 1924, the extitled to a share in the fund, she has filed ceptions to the auditor's report are disexceptions to his report.
missed, and the report is confirmed. It is not necessary to add anything to the comprehensive report of the auditor, because his conclusion is so logically en
Q. S. of forced by his citations of the law upon Commonwealth v. Mathis the question involved, that we cannot make it clearer.
It will be observed that the testator intended the bequest to go, after the
Criminal law-Forfeiture of vehicle-death of his wife and daughter, Amanda, Statute strictly construed-Chattel mortto “all (his) grandchildren (* *, *) and the issue of any deceased grand- gage-Act of March 27, 1923, P. L. 34.
. child." We take it that the testator A statute imposing a forfeiture should be meant by “issue” descendants, all per- strictly construed and in a manner as favor
able to the owner of the property as is consons who have descended from a com-sistent with fair principles of interpretation. mon ancestor, for, at the time he made
Where a chattel mortgage is valid under
the laws of the state where made, the prin- mortgagee of an automobile under a ciples of comity demand that an innocent mortgagee of an automobile forfeited undtr chattel mortgage given in the state of the Act of March 27, 1923, P. L. 34, be given Ohio, can claim the benefits of the act of the same standing as the holder of a bait: assembly in question, accorded to a bailor ment lease or contract. A the proceeds of sale for the balance unpaid. or owner.
The mortgagee in a chattel mortgage has Section II of the Act of March 27, no standing to claim the automobile
1923, supra, provides : “l'pon the trans
portation of intoxicating liquor in vioPetition to forfeit motor vehicle. lation of this act, the wagon, buggy, 11. L. Davis, District attorney, for or other vehicle or receptacle in which it
team, motor vehicle, water or air craft, Commonwealth.
is so transported shall be forfeited to the Craig & Blass, for defendant.
Commonwealth, subject to the provisions
herein set forth." Par. in provides for Hirt, J., April 21, 1927.-A forfeiture a public sale thereof and the character under criminal proceedings in strictness of the notice to be given prior to such is not a fine or a penalty, but rather a sale, and further, “In the event that any term expressing the result which flows such vehicle, team, conveyance, or craft from a failure to comply with the law, is when so seized, held and possessed and a statute creating a forfeiture is con- under a bailment lease or contract and stitutional though consisting in depriva- the legal title thereto is in another pertion of property without due process of son who shall prove that the unlawful law' when such forfeiture fairly tends use for which the same was seized was and is reasonably necessary to accom- without his knowledge or consent, then plish legitimate purpose under the police the claim of the bailor for money due power. 25 C. J. 1172. The proceedings under such bailment lease or contract on a forfeiture are usually in rem and shall attach to and be paid out of the by the terms of the act of assembly in funds derived from said salequestion (Act of March 27, 1923, P. L. Chattel mortgages have not been rec34) it is provided that the proceedings ognized under the policy of the law in shall be in rem, and by reason of the na- Pennsylvania except between the parties ture of the proceedings it is immaterial to the mortgage. Where other rights inthat the person transporting liquor is not tervene they have been held to be against the owner of the vehicle used in the public policy unless the mortgaged pertransportation. “It is a well recognized sonalty is in possession of the mortgagee. principle of law that where a thing A mortgage of personal property withwhereof there is an owner passes into a out a change of possession confers no situation antagonistic to the lew, he may valid lien upon the mortgagee. Clause v. lose his ownership in it simply because Majestic A. H. Co., 250 Pa. 194; Enterthe thing is the offender. The punish- prise W. P. Co. v. Bantoul Co., 260 Pa. ment, if such it be called, falls on the 540; Estate of Jackson, 5 Sadler, 573; thing even though the owner be not per- Fry v. Miller, 45 Pa. 441 ; City Bank v. sonally guilty of crime - They (the Easton B. & S. Co., 187 Pa. 30; Clow v. things seized) are arrested and pro- Woods, 5 S. & R. 275. ceeded against as defendants; they are In all the cases, however, so far as we acquitted or condemned as though they are able to find, a chattel mortgage has were competent to stand in judgment for been held to be invalid and inimical to their violation of the statutes. Oyster public policy only where the transfer of Comm. v. Schooner Carsoll, 61 La. 51; title by the mortgagor without a transfer quoted in 25 C. J. 1171, note 34. of possession leaves the indicia of own
A statute imposing a forfeiture should ership in the mortgagor and thereby rebe strictly construed and in a manner as sults in fraud on bona fide creditors or favorable to the person whose property purchasers. Consideration for the rights is to be seized as is consistent with fair of creditors without notice and of purprinciples of interpretation. The ques-chasers in good faith is at the basis of tion here, therefore, is whether or not a'these decisions. Onder the laws of the
state of Ohio, the locis contractus in sale; the balance, if any, shall be paid to this case, a chattel mortgage is valid as the county treasurer for the use of the against the whole world. Here such county of Erie. mortgage, even though valid in the state in which it was executed, confers no title 0. C. of
Schuylkill Co. or lien as against bona fide creditors or
Estate of George W. Farquhar purchasers.
The principles of public policy which demand such protection to creditors or
Source of innocent purchasers, in our opinion cannot justify the Commonwealth in disre money in hands of administrator-dugarding a contract which is valid where made in another state, and in declaring a
thority of administrator to sell real esforfeiture of the mortgaged property, if tate. the nortgagee is innocent of violation of
When an account is filed by an adminislaw. Something might be said of the in-trator d. b. n. c. t. a. and the money in his iquity of the sale of automobiles on in- hands arises from real estate, he must show stalment contracts, but the practice is his hands: how he became such administra
the manner in which this money came into general and must be recognized as legiti- tor and what authority he had to sell the real mate. In Pennsylvania such sales are accomplished by means of bailment or In re confirmation and adjudication of conditional sales contracts, in other administration account. states by chattel mortgages. Where the right to work a forfeiture is involved, we
W'. 1!. Fallsset, for accountant. believe, the principles of comity demand
Wilhelm, P. J., April 28, 1921.--From that an innocent mortgagce of personal the evidence, we find the following property be given the standing accorded facts.
. a bailor under the Act of Issembly in
Although this account was regularly question. Such mortgagee should have a called for audit, it should not be conlien on the proceeds of sale for the un-firmed, for the following reasons: paid balance of his mortgage, but has no
First:-It appears that George W. standing to claim the seized property as Farquhar died in the year 1846, and the owner, for comity cannot demand that a accountant is administrator d. b. n. c. t. mortgagee receive more than the amount
a. of his estate. This account includes unpaid on the mortgage when a chattel only moneys arising from the sale of real has been seized while used in violation of
estate. The manner in which this money the law. The Commonwealth has an in- came into the hands of the administraterest in the fund arising from the sale tor d. b. n. c. t. a. has not been revealed. of the offending chattel after the satis
Second:--It has not been shown by faction of a bailmetn controct or a mort- what authority, after a lapse of about gage.
seventy-eight years, the Schuylkill Trust The testimony clearly shows that the Company became administrator. automobile when seized was being used Third :—The nature of the proceeding in the illegal transportation of liquor, by which the administrator obtained auand also that the claimant had no knowl- thority to sell the real estate is not stated, edge of such use.
that is whether for the payment of debts And now, to wit, April 21, 1924, the or as trustee in partition for the sale of automobile described in the petition is real estate or otherwise. adjudged forfeited and it is ordered that The only papers presented at the time the sheriff of Erie county sell the same of the audit are the account, which at public sale after due notice as re- simply shows that the money included in quired by law. After the payment of the account arose from the sale of real costs of claim of E. F. Halfinger for estate to which is attached a list of heirs, $700.00, with interest from November which is defective in that it leaves the
to 12, 1923, shall attach to the proceeds of relationship of some of the heirs